Advisory Opinion No. 2000-9
Application Of The Code To Bonus Payment Clauses In
UCONN Coaches’ Consultant Contracts
Over the past several years, the State Ethics Commission has reviewed and approved, with certain modifications, various outside endorsement and consultant contracts entered into by UCONN athletic coaches. The most common of these contracts involves the retention of the coach as consultant by an athletic apparel or shoe company.
In essence, the Commission has allowed the coaches to benefit from the prominence that results from their professional success. At the same time, the Commission has prohibited any agreement that impairs independence of judgment or necessitates the inappropriate use of public position in violation of Conn. Gen. §§1-84(b)or (c). Thus, for example, the Commission has refused to sanction clauses in consultant contracts which mandate that the university coach : insure that his or her assistants or players use the products of the Company; represent the Company in its efforts to obtain University licensing or marketing agreements; or require the team to participate in Company sponsored trips or tournaments.
The legality, under The Code Of Ethics For Public Officials, of one contractual provision remains to be determined. Specifically, it is not uncommon for the consultant contracts in question to include a clause which provides for addition compensation, if the coach’s team: makes the NCAA tournament in its field of play; advances to certain levels of the tournament; or wins a national championship. The State Ethics Commission must now decide if such "bonus" payments are legitimate compensation resulting from the coach’s enhanced reputation and consequent enhanced value to the company; or whether the payments represent additional compensation for performing one’s state job, and are, therefore, barred under Commission precedent. See, State Ethics Commission Advisory Opinion No. 89-20 51 CLJ 7, p. 3C (August 15, 1989): wherein the Commission held that it would constitute an improper use of one’s official position for a state employee to accept additional remuneration, i.e., tips, for performing state duties.
In support of the legitimacy of these bonus clauses, certain coaches and companies have asserted that the payments are justified, since tournament game appearances provide additional opportunities for the coach to appear, often in the national media, wearing the company’s clothing or insignia. Alternatively, it has been asserted that coaching success, as objectively quantified by tournament participation and advancement, translates into greater over all exposure for the coach, and, consequently, increased marketability as a company representative.
The State Ethics Commission is persuaded by these arguments that the bonus payments at issue are distinguishable from the additional compensation prohibited in Advisory Opinion No. 89-20. As has been previously noted by the Commission, UCONN coaches, while subject to the Ethics Code, constitute a distinct class of state employees in that their prominence often transcends their state positions and results, by and large, from their expertise, not their state authority. See, e.g. State Ethics Commission Advisory Opinion No. 97-14 59 CLJ 1, p. 4D (July 1, 1997): wherein the Commission established a "celebrity" gift exemption to the Code allowing UCONN Coaches Calhoun and Auriemma to participate in certain charity sports event.
As a consequence of this analysis, the State Ethics Commission hereby sanctions the bonus payments in question as appropriate remuneration based on the coach’s increased prominence and resultant increased marketing value to the company he or she represents.
Such payments will be permitted under the Code as long as they are not in conflict with the coach’s State responsibilities.
By order of the Commission,
Stanley Burdick,
Chairperson